Curran v. United States, 146.

• Decision Date: 16 August 1971
• Docket Number: No. 146.,146.
• Citation: 332 F. Supp. 259
• Parties: Daniel CURRAN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Delaware

332 F. Supp. 259

Daniel CURRAN, Petitioner, v. UNITED STATES of America, Respondent.

No. 146.

United States District Court, D. Delaware.

August 16, 1971.

John C. S. Frank, Wilmington, Del., for petitioner.

OPINION

LAYTON, District Judge.

Petition to the United States District Court for the District of Delaware by defendant in a Delaware State Court prosecution to produce by way of a writ of habeas corpus ad testificandum an inmate of the federal prison at Lewisburg, Pennsylvania, to testify on defendant's behalf in such State Court proceeding. Petition denied.

The form of order accompanying the petition for the issuance of the writ not only would have this Court direct the State of Delaware to pay the expenses of producing the witness but also is unaccompanied by any order from the Delaware Court before which the case is to be tried certifying the need for the witness or authorizing the payment by the State of Delaware of the costs of producing the witness. Most importantly, the United States Marshal informed the Court that it would have been impossible, because of lack of time, to transport and deliver the witness from Lewisburg for trial in Delaware on the day set for trial.

Title 28 Sec. 2241(c) (5) provides only that a writ of habeas corpus shall not extend to a prisoner "unless (5) * * * it is necessary to bring him into Court to testify * * *."

Speaking generally, in Lunsford v. Hudspeth, 126 F.2d 653 (10 Cir. 1942), Judge Murrah made this statement:

"As an easy and flexible means of administering justice and of affording each sovereignty the right and opportunity to exhaust its remedy for wrongs committed against it, there has evolved the now well established rule of comity which is reciprocal, whereby one sovereignty having exclusive jurisdiction of a person may temporarily waive its right to the exclusive jurisdiction of such person for purposes of trial in the courts of another sovereignty. Thus the offender is accorded a speedy trial and the administration of justice is expedited by the availability of evidence, which might through lapse of time be lost, but such a waiver is a matter addressed solely to the discretion of the sovereignty, or its representatives having power to grant it. Ponzi v. Fessenden 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, supra, and Ex parte Aubert, D. C., 51 F.2d 136. The privileges granted by this flexible rule of comity should and must be respected by the sovereignty to which it is made available, and this respectful duty is reciprocal, whether federal or state, because neither sovereignty has the power to override it. Under the free exercise of this rule, no right or immunity granted by the constitution, laws, or treaties of the United States, is invaded or impaired."

And, more particularly, in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L. Ed.2d 255 (724), the Supreme Court stated:

"For example, in the case of a prospective witness currently in federal custody, 28 U.S.C. § 2241(c) (5) gives federal courts the power to issue writs of habeas corpus ad testificandum at the request of state prosecutorial authorities. See Gilmore v. United States, 129 F.2d 199, 202 (C.A. 10th Cir. 1942); United States v. McGaha, 205 F.Supp. 949 (D.C.E.D. Tenn.1962). In addition, it is the policy of the United States Bureau of Prisons to permit federal prisoners to testify in state court criminal proceedings pursuant to writs of habeas corpus ad testificandum issued out of state courts. Cf. Lawrence v. Willingham, 373 F.2d 731

...